Fox's Fraudulent Defense Of South Carolina's Voter ID Law

In a January 3 segment on Fox News' Fox & Friends, correspondent Jim Angle promoted a number of falsehoods and misleading claims about voter ID laws and the Justice Department's action preventing one such law from being implemented in South Carolina.

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Angle Left Out Justice Department's Rationale For Blocking South Carolina Law

Angle Provided South Carolina's Rebuttal But Not DOJ's Reasoning For Stopping SC Voter ID Law From Taking Effect. From the January 3 edition of Fox & Friends:

ANGLE: There would be one more new law in South Carolina except that Attorney General Eric Holder's Justice Department recently blocked it. State officials are challenging the move in court, noting the IDs are free and that no voter is turned away.

ALAN WILSON (South Carolina Attorney General): In our law, the person can show up to the polling place the day of the election. They can basically sign an affidavit stating they had a reasonable impediment while they didn't have a photo ID. And the presumption's against the state. Their vote will be counted. [Fox News, Fox & Friends, 1/3/12]

DOJ: South Carolina Failed To Meet Burden To Prove Their New Law Would Not Abridge Right To Vote On Account Of Race, As Required By Voting Rights Act. In a letter to South Carolina Assistant Deputy Attorney General C. Havird Jones, Jr., U.S. Assistant Attorney General Thomas E. Perez wrote:

Under Section 5 of the Voting Rights Act, the submitting authority has the burden of showing that the proposed changes have neither the purpose nor the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group.Georgia v. United States, 411 U.S. 526 (1973); Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, 28 C.F.R. 51.52(c). The voting change at issue must be measured against the benchmark practice to determine whether it would "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141 (1976).

[...]

Until South Carolina succeeds in substantially addressing the racial disparities described above... the state cannot meet its burden of proving that, when compared to the benchmark standard, the voter identification requirements proposed in section 5 of Act R54 will not have a retrogressive effect. Because we conclude that the state has failed to meet its burden of demonstrating that section 5 of Act R54 will not have a retrogressive effect, we do not make any determination as to whether the state has established that the proposed changes to its voter identification requirements were adopted with no discriminatory purpose. [Department of Justice letter to South Carolina, 12/23/11, emphasis added]

In assessing the impact of the proposed photo identification requirements in section 5 of Act R54, we turn first to the data that the state has provided concerning registered voters within the state. The most recent voter registration data available from the State Election Commission indicate that, as of October 1, 2011, there were a total of 2,701,843 registered voters in the state, of whom 69.6% were white and 30.4% were non-white. These data also show that of the total number of registered voters in the state, 239,333 (or 8.9%) did not possess DMV-issued photo identification (either a driver's license or a non-driver's photo ID card) that would satisfy the requirements under Act R54. When disaggregated by race, the state's data show that 8.4% of white registered voters lacked any form of DMV-issued ID, as compared to 10.0% of non-white registered voters. In other words, according to the state's data, which compare the available data in the state's voter registration database with the available data in the state's DMV database, minority registered voters were nearly 20% more likely to lack DMV-issued ID than white registered voters, and thus to be effectively disenfranchised by Act R54's new requirements. We note that the voter registration data matched against the DMV database, and provided to us by the state, does not include several categories of existing registered voters listed as inactive voters, and hence, the number of registered voters without DMV-issued ID may well be higher than even these numbers suggest.

Put differently, although non-white voters comprised 30.4% of the state's registered voters, they constituted 34.2% of registered voters who did not have the requisite DMV-issued identification to vote. Non-white voters were therefore disproportionately represented, to a significant degree, in the group of registered voters who, under the proposed law, would be rendered ineligible to go to the polls and participate in the election. [Department of Justice letter to South Carolina, 12/23/11, emphasis added]

Angle Promotes Claim That South Carolina Offers "Free" Photo IDs ...

Angle: "State Officials Are Challenging The Move In Court, Noting The IDs Are Free." From the January 3 edition of Fox & Friends:

ANGLE: There would be one more new law in South Carolina except that Attorney General Eric Holder's Justice Department recently blocked it. State officials are challenging the move in court, noting the IDs are free and that no voter is turned away. [Fox News, Fox & Friends, 1/3/12]

South Carolina DMV: To Obtain "Free" Voter ID Card, People Must Provide Birth Certificate, Social Security Card, And Proof Of Residency -- Documents Some Lack And Need To Purchase. From a September 27, 2011, Associated Press article on the South Carolina Department of Motor Vehicles arranging rides to their offices for some who wished to obtain a "free" photo ID:

To obtain free ID cards from the DMV, people must provide a birth certificate, Social Security card and proof of residency, the agency said. If they had a name change since birth, they must also have legal documents such as a marriage license, divorce decree or adoption records to support the name change. To get the photo voter registration card, however -- once they become available -- those documents won't be required.

DMV officials said callers were told what documents were needed and how to obtain any they were lacking.

But critics said the invitation didn't address a major obstacle to securing the DMV ID -- that many voters don't have the needed documentation. [AP, 9/27/11]

Advancement Project's Browne-Dianis: "Costs Of Getting The Newly Required ID Can Be Significant." From Advancement Project co-director Judith A. Browne-Dianis' written testimony for a September 8, 2011, hearing before a Senate subcommittee:

C. Many voters face substantial hurdles to obtaining the particular ID prescribed by the new laws.

The hurdles for those without requisite ID can be substantial. State IDs may cost $10 to $30 to obtain and many state license bureaus have limited hours and locations for obtaining an ID. Even if states provide ID without cost to those who don't have one, the underlying documents necessary to procure a state ID are not cost-free, and can be difficult, time-consuming and sometimes impossible to obtain.

D. Costs of getting the newly required ID can be significant.

The cost of obtaining identification to vote is tantamount to a poll tax. While the specific rules vary state to state, in general, as states implement provisions of the REAL ID Act, voters must present several underlying primary and secondary forms of identification, such as a certified birth certificate or passport, to prove identity, citizenship, and place of residence in order to get a state ID. In some instances, voters must present a social security card, proof of residence, court documents or marriage and divorce records if names have changed from that on their birth certificate. A copy of a Missouri birth certificate costs $15, and in Indiana it costs between $12 and $20. In Texas, it costs $22. In some states, it may cost up to $45 for a birth certificate. A current U.S. passport can cost between $85 and $145, while naturalization papers can cost up to $200. Making matters more difficult, seventeen states plus Puerto Rico and Guam require a photo ID before they will issue a copy of one's birth certificate, or alternatively require multiple pieces of secondary forms of ID to get a birth certificate, which is then necessary to present in order to get a photo ID. In some states, the wait to get a copy of a birth certificate or other records can be weeks or months. There may be other hidden costs such as transportation to various agencies and fees related to acquiring supporting documents. These significant hurdles led the Missouri Supreme Court to conclude in 2006 that the state's photo ID law amounted to a poll tax and unconstitutionally disenfranchised voters -- even if the state provided ID without cost to those who lacked one. [Browne-Dianis written testimony for a hearing before the Subcommittee on the Constitution, Civil Rights, and Human Rights, Senate Committee on the Judiciary, 9/8/11, emphasis original]

Search Fee For Each South Carolina Vital Record Is $12. From the website of the South Carolina Department of Health and Environmental Control's Vital Records Services:

RECORDS SEARCH - $12.00 per record

Birth, death, marriage, divorce - Includes one certified copy, if located. If the record is not located, the search fee is nonrefundable. [SCDHEC.gov, accessed 1/3/12]

Fox Pushes Fallacy That Photo ID Should Be Required To Vote Because It's Required For Other Purposes

Angle: Photo ID Is "Required To Get Into Any Federal Building... Drive, Buy Liquor Or Cigarettes." From the January 3 edition of Fox & Friends:

ANGLE: Democrats, however, argue such practices discriminate against minorities and the poor.

DICK HARPOOTLIAN (South Carolina Democratic Party Chairman): Why are we making this a precondition to exercise the most basic right in this country?

ANGLE: But Republicans say there's nothing burdensome about a photo ID, which is required to get into any federal building, including the Justice Department, and to drive, buy liquor or cigarettes, even to collect welfare in many states. [Fox News, Fox & Friends, 1/3/12]

Doocy: "Why Not A Driver's License? You Need One To Check Out A Video At Blockbuster Or Book At The Library?" From the January 3 edition of Fox & Friends:

STEVE DOOCY (co-host): Thank you for getting up so early for us, Jim. Why not a driver's license? You need one to check out a video at Blockbuster or book at the library.

BRIAN KILMEADE (co-host): Right, and if you can find a Blockbuster, good luck.

DOOCY: If you can find a book in a library... [Fox News, Fox & Friends, 1/3/12]

Election Experts Say That This Analogy Is Invalid

Loyola Associate Professor Levitt On Voting Analogy: "Drinking A Beer Is Very Nice," But "I Don't See That In The Constitution." From Loyola Law School Associate Professor Justin Levitt's September 8, 2011, testimony before a Senate subcommittee:

One word on airplanes -- Mr. von Spakovsky is fond of saying that you need photo ID to board a plane. I wish he'd add "and I'm George Clooney" because neither one is true. To get to you today, I had to board a plane from Los Angeles. I never showed photo ID. While waiting in the terminal, I drank a beer while waiting for the flight and quite enjoyed it. I never showed ID. To come testify before you today, I had to walk right in through this federal building and never showed ID. In fact, I haven't had photo ID in my wallet the entire week.

Airlines, restaurants, federal buildings have figured out ways of accommodating real American citizens without restricting them to single ID cards and as a fundamental constitutional right, so should all elections in the country. The airplane analogy is also beside the point. This is the last thing I'll mention. Voting is in two articles of the Constitution, in 10 amendments of the Constitution. It's featured at the very heart of our constitutional order.

Boarding a plane is nice. Drinking a beer is very nice. But outside of Prohibition, I don't see that in the Constitution. [Levitt testimony at a hearing before the Subcommittee on the Constitution, Civil Rights, and Human Rights, Senate Committee on the Judiciary, 9/8/11, via Nexis]

ACLU South Carolina Executive Director Middleton: "It's Not A Constitutional Right To Buy Sudafed Or Become A Frequent Flier." In October 2011, the William & Mary Election Law Society reported of an interview with ACLU South Carolina executive director Victoria Middleton:

Photo IDs are required for many activities these days, from boarding a plane to purchasing a six-pack of beer. When asked if it was unreasonable to ask an individual to present an ID to vote, Middleton said, "It's not a constitutional right to buy Sudafed or become a frequent flier." She continued, "People fought and died to win the right to vote." [William & Mary Election Law Society, 10/28/11]

Adams: Arguments "Flimsy" Since "The 15th Amendment Is In Play When It Comes To Voting." In a BigGovernment.com piece attacking the DOJ's letter, J. Christian Adams wrote:

Finally, don't fall into the silly and constitutional incorrect argument that you have to show ID to cash a check and get on a plane. Flimsy arguments like that are what the left wants from you. The 15thAmendment is in play when it comes to voting. It prohibits racial discrimination in voting, and Section 5 of the Voting Rights Act is passed to enforce that part of the Constitution. Cashing a check isn't found in the Constitution, and people who love the Constitution shouldn't equate a plane trip with the right to vote free from racial discrimination. [BigGovernment.com, 12/24/11]

For information on Adams' constant attacks on the Obama DOJ and defenses of voter ID laws, SEE HEREAND HERE.

ANGLE: Democrats, however, argue such practices discriminate against minorities and the poor.

DICK HARPOOTLIAN (South Carolina Democratic Party Chairman): Why are we making this a precondition to exercise the most basic right in this country.

ANGLE: But Republicans say there's nothing burdensome about a photo ID, which is required to get into any federal building, including the Justice Department, and to drive, buy liquor or cigarettes, even to collect welfare in many states. [Fox News, Fox & Friends, 1/3/12]

But Voter ID Laws Have Stopped Many Eligible Voters And Could Disenfranchise Many More In 2012

LA Times: Indiana Voter ID Law "Ke[pt] Nuns, Students From Polls." The Los Angeles Times reported in a May 7, 2008 article: "A dozen nuns and an unknown number of students were turned away from polls Tuesday in the first use of Indiana's stringent voter ID law since it was upheld last week by the U.S. Supreme Court." From the LA Times article, headlined "ID law keeps nuns, students from polls":

A dozen nuns and an unknown number of students were turned away from polls Tuesday in the first use of Indiana's stringent voter ID law since it was upheld last week by the U.S. Supreme Court.

The nuns, all residents of a retirement home at Saint Mary's Convent near Notre Dame University, were denied ballots by a fellow sister and poll worker because the women, in their 80s and 90s, did not have valid Indiana photo ID cards.

Though state officials reported no significant problems, advocates monitoring polling places said there was occasional confusion.

"We were at one polling place for a few hours and picked up three or four different stories of people being turned away," said Gary Kalman of the U.S. Public Interest Research Group in Washington. "I don't have numbers about how widespread it is."

"It's the law, and it makes it hard," said Sister Julie McGuire, who was working at the polling place and had to explain to the nuns that they could not vote. "Some don't understand why."

Indiana requires voters who come to the polls show a photo ID issued by the state or the federal government. The law was pressed by Republicans citing voter fraud and opposed by Democrats and the ACLU, who argued that it would disenfranchise voters. [Los Angeles Times, 5/7/08]

NY Times: In One Indiana County, 32 "Voters Had Their Ballots Thrown Out" Because Of Voter ID Laws. From a January 7, 2008, New York Times article:

After Ms. [Valerie] Williams grabbed her cane that day and walked into the polling station in the lobby of her retirement home to vote, as she has done in at least the last two elections, she was barred from doing so.

The election officials at the polling place, whom she had known for years, told her she could not cast a regular ballot. They said the forms of identification she had always used -- a telephone bill, a Social Security letter with her address on it and an expired Indiana driver's license -- were no longer valid under the voter ID law, which required a current state-issued photo identification card.

"Of course I threw a fit," said Ms. Williams, 61, who was made to cast a provisional ballot instead, which, according to voting records, was never counted. Ms. Williams -- who has difficulty walking -- said she was not able to get a ride to the voting office to prove her identity within 10 days as required under the law, and her ballot was discarded.

[...]

A brief filed with the Supreme Court by the Marion County Board of Elections, the state's largest voting jurisdiction

and a defendant in the case, said Ms. Williams -- who is a black Republican -- and 31 other voters had to cast provisional ballots because they showed up at the polls without the state-required ID, which can include a driver's license, a passport, a state-issued ID or some other government-issued photo identification. Because they also failed to appear later at county offices with the identification required to validate their identities, all of these voters had their ballots thrown out, records show. In interviews, many of these voters said they could not find transportation or could not afford the IDs.

[...]

Mary-Jo Criswell, 71, who -- like Ms. Williams -- an Indiana voter cited in the case before the Supreme Court, had her vote thrown out in November after she was told the identification she had used in previous elections -- a bank card with a photograph, a utility bill and a phone bill -- no longer sufficed. [The New York Times, 1/7/08]

Brennan Center For Justice Estimates 3.2 Million Eligible Voters In States With New Laws Lack State-Issued Photo ID. New York University's Brennan Center for Justice issued a report estimating that newly enacted restrictions on voting, including implementing photo ID laws, "could make it significantly harder for more than 5 million eligible voters to cast ballots in 2012." From the Brennan Center for Justice:

1. 3.2 million voters affected by new photo ID laws. New photo ID laws for voting will be in effect for the 2012 election in five states (Kansas, South Carolina, Tennessee, Texas, Wisconsin), which have a combined citizen voting age population of just under 29 million. 3.2 million (11 percent) of those potential voters do not have state-issued photo ID. Rhode Island voters are excluded from this count, because Rhode Island's new law's requirements are significantly less onerous than those in the other states. [Voting Law Changes In 2012, Brennan Center for Justice, October 2011; Brennan Center for Justice, 10/3/11]

Angle Suggests Voter ID Is Needed To Prevent Voter Fraud...

ANGLE: The Supreme Court approved Indiana's photo ID law in 2008. Other courts have also given the green light in an effort to avoid voter fraud. [Fox News, Fox & Friends, 1/3/12]

... But Actual Instances Of Voter Fraud Are Few And "Scattered"

Supreme Court Plurality Actually Found Only "Scattered Instances Of In-Person Voting Fraud." The Supreme Court plurality in Crawford v. Marion County Election Board did not find widespread in-person voter fraud, the type of fraud that a requirement that voters show identification at their polling places is meant to address. Rather, it found only "scattered instances" of such fraud. From the plurality opinion in Crawford v. Marion County Election Board:

Justice Department Report Shows Very Few Prosecutions For Illegally Casting Ballots. According to a report by the Public Integrity Section of the Justice Department, from October 2002 through September 2005, the Justice Department charged 95 people with "election fraud" and convicted 55. Among those, however, just 17 individuals were convicted for casting fraudulent ballots; cases against three other individuals accused of casting fraudulent votes were pending at the time of the report. In addition, the Justice Department convicted one election official of submitting fraudulent ballots and convicted five individuals of registration fraud, with cases against 12 individuals pending at the time of the report. Thirty-two individuals were convicted of other "election fraud" issues, including Republicans convicted of offenses arising from "a scheme to block the phone lines used by two Manchester [New Hampshire] organizations to arrange drives to the polls during the 2002 general election." In other words, many of these convictions were connected to voter suppression efforts, not voter fraud. Several other people listed in the report were convicted of vote-buying. [Department of Justice, accessed 1/3/12]

NYU's Brennan Center: Allegations Of Voter Fraud "Simply Do Not Pan Out" And Distract From "Real [Election] Problems That Need Real Solutions." From a 2007 report by The Brennan Center for Justice:

Perhaps because these stories are dramatic, voter fraud makes a popular scapegoat. In the aftermath of a close election, losing candidates are often quick to blame voter fraud for the results. Legislators cite voter fraud as justification for various new restrictions on the exercise of the franchise. And pundits trot out the same few anecdotes time and again as proof that a wave of fraud is imminent.

Allegations of widespread voter fraud, however, often prove greatly exaggerated. It is easy to grab headlines with a lurid claim ("Tens of thousands may be voting illegally!"); the follow-up -- when any exists -- is not usually deemed newsworthy. Yet on closer examination, many of the claims of voter fraud amount to a great deal of smoke without much fire. The allegations simply do not pan out.

These inflated claims are not harmless. Crying "wolf" when the allegations are unsubstantiated distracts attention from real problems that need real solutions. If we can move beyond the fixation on voter fraud, we will be able to focus on the real changes our elections need, from universal registration all the way down to sufficient parking at the poll site. Moreover, these claims of voter fraud are frequently used to justify policies that do not solve the alleged wrongs, but that could well disenfranchise legitimate voters. Overly restrictive identification requirements for voters at the polls -- which address a sort of voter fraud more rare than death by lightning -- is only the most prominent example. [Brennan Center for Justice, accessed 1/3/12]

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